Analysis: McDaniel Likely to Lose #MSSEN Challenge

A press conference concluded a few minutes ago by the McDaniel campaign suggests that the campaign found far fewer illegal votes than the approximately 7,600 votes separating him from Sen. Thad Cochran in the MS Republican Senate primary. Instead, it sounds like the campaign has alleged only 3,500 votes cast by voters who also (presumably illegally) voted in the earlier Democratic primary. There are 9,500 other votes said to be “irregular,” and 2,500 allegedly improper absentee ballots.

Those numbers alone suggest there will not be enough to get a new election, unless the “irregularities” are serious enough to call the result in question. But that would not be impossible, depending on what the evidence shows.

But the reason I expect McDaniel will likely lose is that he is not asking for a new election. Instead, he is asking for a remedy of having him declared the winner. He would apparently rely upon polling to show that Democrats who voted in the primary did not intend to vote for the eventual Republican nominee in the fall. This relies upon a MS code provision saying that only those who will support the nominee in the general election can vote in the primary.

To begin with, the interpretation of that provision before the election, confirmed in a press release just before the election from the Secretary of State and Attorney General was that it was unenforceable. That was the prevailing view before the election. If McDaniel didn’t like it, he should have sued before the election. Now such a claim should be barred by laches (unreasonable delay).

Second, even if McDaniel’s legal interpretation were correct and the claim not barred by laches, polling evidence is likely not good enough to show that there were more votes for Cochran.

Finally, as to a remedy, what McDaniel must be asking for is a “proportional reduction” of votes based upon such polling, which would subtract more votes from Cochran than McDaniel. That remedy was strongly rejected in the contested Washington state governor’s race between Rossi and Gregoire, and I don’t expect a court would accept that here to declare the loser the winner.

In short, it is hard enough to get a court to declare a new election after ballot irregularities. To get the court do declare the loser the winner is a remedy which almost never happens absent strong proof of fraud on the winner’s side.

UPDATE: The McDaniel campaign has now posted its election contest papers. I have put them up on Scribd in a 13 mb file (instead of the original 104 mb file). The contest presents an even weaker claim than was described at the press conference. This will almost surely fail before both the MS Republican party and in court.

To begin with, despite all the talk of massive fraud by the McDaniel campaign for weeks, there is virtually nothing substantiating fraud alleged in the complaint. The main “fraud” is Democrats who intended to vote for the Democratic nominee during the general election being allowed to vote in the Republican primary. Given that such voting was deemed acceptable before the election by both the Secretary of State and the Attorney General (in line with longstanding practice and an earlier AG opinion), neither the party nor the court will count this as fraud.

As to other potential fraud and irregularities, there is nothing here that meets the standard to show enough fraud in the election to require it to be overturned. At most this shows that the elections were not administered competently in some jurisdictions. (This is not breaking news to anyone who follows how elections are actually run.) There’s nothing to show that these problems were deliberate fraud, or done in a way that particularly hurt McDaniel.

In sum, I’d reiterate the point I made earlier before I could see this filing. At most, what McDaniel alleges should lead to a new election. Surely any election lawyer with some experience who would say that McDaniel will be declared with winner with this dossier is smoking something which I believe is still illegal in the state of Mississippi.

Finally, I think it is clear that McDaniel should become a national member of the Fraudulent Fraud Squad. His website today still accuses Democrats of “stealing” the election. It is a serious allegation, but one not backed by the evidence. Such charges are pernicious when they are not backed by proof. For weeks McDaniel promised that proof and has not delivered.

I only hope that those Republicans on the receiving end of spurious claims of voter fraud will remember this the next time when they might be in the position to stop unsubstantiated charges like that from being levied against others.